Not the way to bring down a government

According to the Sydney Morning Herald, Labor is launching court action with the objective of having a government minister disqualified from holding his seat in Parliament.

The opposition believes Assistant Health Minister David Gillespie may have an indirect financial interest in the Commonwealth – grounds for disqualification from office under section 44(v) of the constitution [which bans anyone who “has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth”

As revealed by Fairfax Media in February, the Nationals MP owns a small suburban shopping complex at in Port Macquarie and one of the shops is an outlet of Australia Post – a government-owned corporation.

This is an absurd technicality, and I hope the High Court throws the case out. The Parliament is full of people on both sides whose main interest in holding office is in building up contacts for their future careers as lobbyists, bank sinecurists or both. If we can’t do something about this disgraceful situation, the idea of disqualifying someone for an obviously honest transaction with no potential for corruption adds insult to injury.

Maybe, but it isn’t augur well for Gillespie, unless the High Court can find a way to say that on the one hand there’s indirect financial interest and on the other hand there’s indirect financial interest, with one but not the other in breach of the Constitution.

And neither has anything to do with ex-ministers taking the shilling of lobbyists, about which the law is apparently silent.

Yep, bad law – the constitution gives no guide at all as to how indirect “indirect” is, and we all have indirect interests in the Commonwealth. But there it is, and while IANAL on the Day precedent I think Gillespie might be gone (stare decisis and all that).

The pragmatic politics, though, are entirely different in the two cases. If the government becomes a minority one (it won’t actually fall) it will be a disaster for Labour because Turnbull will be able to use that to discipline his crazies, while blaming it all on Labour. Labour should have been much more careful of what it wished for; at the very least they should have guietly nudged someone else to bring the action (NXT would have been a good candidate because they’d stand to win the balance of power).

You think? The crazies might just go all-in crazy kamikaze. That’s the thing about crazies. They’re crazy, and therefore not predictable. In any case, it’s a safe NP seat. Yes, popular local identity independent candidate and all that, but you wouldn’t bet your house on it.

I know politics is supposed to be a dirty game but IMO the ALP are not doing themselves any favours by taking advantage of a most minor technicality – underarm bowling doesn’t attract much sympathy from sympathy.

There is an argument for saying that it will lead to clarification of the law in this area. While there are other issues on the subversion of democracy by failures in transparency on funding of parties I don’t see the harm in putting up some No entry signs for politicians on this area.

Do not forget the Hunt, Sukkar and Tudge appeal they were ‘involved in” spectacularly was re-mentioned on the 30/6/17 with no published result yet. They still could be prosecuted by eg. the Vic. DPP in which case s. 44 will come dramatically into play – then there is still Gillespie.

The coalition claims to have legal advice but will not release it saying it secures Gillespie’s position. If it helped his case I expect it would have been released by now – certainly Labor cannot be blamed for worrying the High Court with a legitimate question failing this disclosure.

As to an indirect pecuniary interest I assume Gillespie as lessor of premises in which the lessee runs a government agency’s licence may enhance its value by voting to positively advance Auspost’s monopoly. This may be a conflicted position though not a huge one.

Bob Day was disqualified because he insisted that the government run through his preferred supplier, Bob Day Nominees Electoral Office Services. It’s a classic kickback arrangement, not the anaemic “gives rise to the impression of the possibility” we normally deal with.

WRT Gillespie… strikes me that “the contract’s with the agency, not the post office proper” is a pretty compelling argument in isolation… so that the government hasn’t just said that makes me think there’s something more here. The thought strikes me that It’s possible that they’re using Gillespie as a stalking horse, to get the government to nail down a position on Gillespie that someone else — perhaps someone with more-widespread investments? — is in violation of.

Yep, bad law – the constitution gives no guide at all as to how indirect “indirect” is,

If not defined then the words bear their usual meaning. Same as “arrangement”.

But in neither case are we talking particularly tenuous connections; in the Bob Day case, the connections were direct and straightforward [albiet concealed and mispresented, to avoid the blatant appearance of corruption; avoiding the substance of corruption doesn’t appear to have been Bob Day’s plan], while in the instant one the facts are either a direct connection between Gillespie and a government agency, or a one-step-removed one through the post office agent [and if it’s the latter case then it’s widely-but-not-universally regarded that Gillespie is in the clear anyway.]

It’s worth noting that Phil Cleary was disqualified on account of circumstances that paid him actual zero dollars, and noone’s ever said that you needed to show that dual citizens were actual paid agents of a foreign power to be disqualified.

A paper of note:
Who May Sit? An Examination of the Parliamentary Disqualification Provisions of the Commonwealth Constitution*
John Kalokerinoshttps://www.aph.gov.au/binaries/senate/pubs/pops/pop36/kalokerinos.pdf
The Webster’s Case
Section 44(v) was considered at length in Webster by Barwick CJ sitting alone as the Court of Disputed Returns. In his Honour’s view, to fall within s 44(v) there must be an agreement which ‘must have a currency for a substantial period of time’, and it ‘must be one under which the Crown could conceivably influence the contractor in relation to parliamentary affairs’.172
Webster involved Country Party Senator James Joseph Webster, one of nine shareholders in, Managing Director and Secretary of, JJ Webster Pty Ltd. Agreements for the supply of timber from his firm to government departments stretched back to 1964,173 coincidentally the year he entered the Senate. In a narrow judgment, confined to the facts before him, Barwick CJ held that Webster’s dealings did not fall within s 44(v), because, first, they consisted of a series of small, discrete contracts, and second, in his Honour’s estimation, the Crown would be incapable of exerting any influence in parliamentary affairs by anything it could do in relation to the agreement.174 Having decided in Webster’s favour, Barwick CJ considered the proviso to s 44(v) relating to membership of a company, holding that mere shareholding in a company does not alone create a pecuniary interest in any agreement the company may have with the Public Service. Although Barwick CJ found that ‘other circumstances’ may possibly combine with a shareholding to create a pecuniary interest, such circumstances were held not to exist in Webster.175

@Jozef
Again, IANAL but the criterion “the Crown would be incapable of exerting any influence in parliamentary affairs by anything it could do in relation to the agreement” if held as precedent seems to me to put Gillespie in the clear. Does anyone really believe having a post office franchise being one among many lessors of a shopping centre he is part owner of could influence his vote on anything?

@Derrida: It’s important to remember that Garfield Barwick was a **** hack. That’s why he sat alone, here; if anyone else had had input into the judgement, they would have said, “hang on, ‘shareholding’ marked out specifically as OK means that — exception [demonstrates] the rule — any other role such as for example ‘company secretary’ must not be OK under normal canons of legal interpretation”. For example.

So it’s not going to be held as precedent. It’ll be ignored as much as the court can physically manage.

I don’t suppose raising the issue of how many of Gillespie’s shopping centre units were negatively geared would enter the fray…except that Labor would likely see it as clearly ‘relevant’ if the issue could be kept on the boil through any subsequent early election.

More than likely the Labor Party has its fair share of members with negatively geared properties. They might want to keep quiet about that aspect of Dr Gillespie’s property portfolio. And he’s wealthy anyway. He might own them all outright.

And if the tables were reversed and a sitting Labor govt’s slim majority was at stake, would the LNP refrain? I would be very surprised. There are a lot of aspects of how politics is played that are not edifying and giving up an advantage, even if it’s a cheap shot, seems a lot to ask. Easier the cheap shot that gets someone on a technicality than playing politics on the basis on development and communication of policies I suppose.

I have read the author’s thesis on the topic dated 2000.
Coalition Senator Webster’s case was in 1975 and was presided over by a single High Court Justice Barwick the CJ. then.
Without minutely analysing Day No.2 High Court 2017 it was a unanimous decision by all the High Court justices that Webster was wrongly decided.
There is no doubt Barwick was politically aligned with the anti-Labor forces of Australian politics then.
Our High Court decided he was in error by misunderstanding that the genesis of section 44 of our Constitution was also based on the possible conflict of interest in politicians having interests which may affect their parliamentary duties indirectly or directly constitutionally hence Day was “done” clearly.
It only occurred to me this morning that the lessee may be characterised as an Austpost Agent hence Gillespie’s contract may be with the Public service directly depending on the facts yet to be revealed – certainly Georgie is not disclosing them as per usual.
Not all contracts with Public service are prohibited but only those in which the pollie directly or indirectly has a pecuniary interest.

@Ken Fabian
But the point is the cheap shot would misfire – it would be most unlikely to bring the government down. Gillespie is in a safe seat, and after this his Labour opponent would get little sympathy from the locals at the by-election anyway. And looking ahead it is quite likely to set an inconvenient precedent.

@Ken Fabian The way that the LNP went for both Gillard and Slipper was unedifying but achieved its purpose, in the short term. Of those in the infamous “ditch the witch” photo only Abbott remains, just.

Rog,
There is an argument the pursuits of Slipper, Gillard and Thomson were not bona fide and their accusers are not out of the woods yet because of their illegal conduct. The 44 claim against Gillespie appears bona fide irrespective of the outcome; ask Bob Day. I gather Brett Walker SC is representing Labor and I will not tout his obvious legal skills here.
The Slipper and Thomson matters are not over yet.
It is clear Slipper’s diaries were flogged for the benefit of easily identifiable Coalition members – see the Blog “vinceogrady” for the evidence. The AFP has not been held to account for not proceeding yet! Also see Casilli v Wehrman (2014) WASC for the likely penalty which has to be actual jail.
This is becoming Royal Commission stuff.
Similarly Thomson was publically accused by Coalition members, even before he was charged, including so called lawyers Brandis AG, Abbott, Pyne, Fierravante-Wells. Remember he was only finally found culpable for $5,000 whereas he was accused pre-trial by this lot of $500,000 worth. Tudge, Hunt and Sukkra can advise them of the advantage of an early plea and the joys of not seeing life through bars at the discretion of a large prison officer OR a larger prisoner. Abbott the “cycling travel-claim” and Fierravante-Wells a former Australian Government Legal Officer!
As if Brough would not have consulted Abbott before contracting Ashby to undermine Slipper !